Madras High Court
K.Periasamy vs K.Sundaraswamy on 7 July, 2023
C.M.S.A.No.9 of 2004
IN THE HIGH OF JUDICATURE AT MADRAS
DATED : 07.07.2023
Coram
The Hon'ble Mr.Justice Krishnan Ramasamy
C.M.S.A.No.9 of 2014
and
M.P.No.1 of 2014
K.Periasamy
... Appellant
Vs.
1. K.Sundaraswamy
2. Veerathal (died)
Sole appellant and R-1 have already been recorded
in this Appeal aslegal heirs of the deceased
R-2, vide order, dated 08.11.2019, made in this appeal
and as per memo, dated 08.11.2019, (presented-in-court) are recorded.
...Respondents
This Civil Miscellaneous Second Appeal is filed under Section 100 of
C.P.C., against the judgment and decree, dated 13.11.2013 passed in
CMA.No.52 of 2012, on the file of the Principal District Court, Tiruppur,
in confirming the fair and decreetal order, dated 24.11.2010, passed in
1/13
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.9 of 2004
I.A.No.422 of 2010, in O.S.No.74 of 2005, on the file of the Subordinate
Court, Udumalpet.
For Appellant : Dr.R.Gouri
For Respondent-1 : Mr.M.Guruprasad
Respondent -2 : Died
JUDGEMENT
This Civil Miscellaneous Second Appeal is filed against the
judgment and decree, dated 13.11.2013 passed by the learned Principal
District Judge, Tiruppur, in CMA.No.52 of 2012, whereby, the fair and
decreetal order passed by the learned Subordinate Judge, Udumalpet in
I.A.No.422 of 2010, in O.S.No.74 of 2005, dated 24.11.2010, is confirmed.
2. The appellant filed a suit for partition in O.S.No.74 of 2005,
against his brother/first defendant and mother/second defendant in
O.S.No.74 of 2005, on the file of the Subordinate Court, Udumalpet,
(hereinafter, referred to as Trial Court) in respect of 'A' and 'B' schedule
properties.
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.9 of 2004
2.1 The Trial Court, vide judgment and decree, dated 31.08.2006,
passed a preliminary decree holding that the plaintiff is entitled to 1/2 share
in respect of 'A' schedule property and 1/3rd share in respect of 'B' schedule
property.
2.2 Against the said preliminary decree passed by the Trial Court,
plaintiff preferred an appeal, in A.S.No.135 of 2006, on the file of the
Principal District Judge, Coimbatore (hereinafter, referred to as First
Appellate Court).
2.3 The First Appellate Court, vide judgment and decree, dated
14.07.2009, allowed the First Appeal.
2.4 Pursuant to a decree passed by the First Appellant Court, the
first respondent herein filed an Interlocutory Application in I.A.No.422 of
2010, seeking to pass a supplementary decree, and the Trial Court, vide fair
and final order, dated 24.11.2010, allowed the said Application.
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.9 of 2004
2.5 Against the fair and final order passed in I.A.No.422 of 2010,
dated 24.11.2010, the plaintiff/appellant herein filed a Civil Miscellaneous
Appeal in C.M.A.No.52 of 2012 before the Principal District Court,
Tiruppur, and Principal District Judge, vide judgement and decree, dated
13.11.2013, dismissed the Appeal.
2.6 Challenging the dismissal order passed in CMA.No.52 of 2012,
the present Civil Miscellaneous Second Appeal is filed.
3. Dr.R.Gouri, learned counsel appearing for appellant submits
that the appellant filed a suit for partition in O.S.No.74 of 2005, against his
brother/first defendant and mother/second defendant in respect of both 'A'
and 'B' schedule properties. The Trial Court, vide judgment dated
31.08.2006, passed a preliminary decree holding that the plaintiff is entitled
to 1/2 share in respect of 'A' schedule property and insofar as 'B' schedule
property is concerned, 1/3rd share was allocated to appellant/plaintiff, first
respondent/first defendant and second respondent/second defendant
respectively. Challenging the said preliminary decree passed in respect of
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.9 of 2004
'A' schedule property, appellant herein preferred an Appeal Suit, in
A.S.No.135 of 2006. The learned counsel contended that 'A' schedule
property is purchased from and out of his own earnings, and therefore, he is
entitled to 50% of the share. However, the First Appellate Court, while
deciding the tenability of the preliminary decree passed by the Trial Court,
proceeded to decided a larger issue and held that since the second
respondent is not a legally wedded wife of the appellant's father, Kalliapa
Gounder,she is not entitled to inherit the property belonged to her husband,
inasmuch as, the suit properties are ancestral in nature and only the
appellant and first defendant/first respondent, being his (Kalliapa Gounder)
sons are entitled to equal share in the suit properties.
3.1 Learned counsel appearing for appellant submits that since the
findings rendered by the First Appellate Court in A.S.No.135 of 2006 has
attained finality, as there is no appeal over the same, the first respondent,
taking advantage of the same, filed I.A.No.422 of 2010 to pass a
supplementary decree, claiming to allot ½ share in respect of 'A' schedule
and 1/3rd share in 'B' schedule property and the Trial Court also swayed
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.9 of 2004
away by an impression that I.A.No.422 of 2010, was filed consequent to the
judgment passed in A.S.No.135 of 2006, since the said Appeal Suit was
preferred only against the preliminary decree passed in respect of 'A'
schedule property, since no appeal was filed against 'B' schedule property,
and persuaded by a thought that the text of the judgement made in
A.S.No.135 of 2006, cannot be applied to 'B' schedule property, arrived at a
wrong conclusion and thereby, allowed the application.
3.2 The learned counsel submitted that, the Trial Court failed to
consider the important factor that the judgment passed by the First
Appellate Court would be binding on 'B' schedule property as well and
though the appellant, in the counter affidavit filed in I.A.No.422 of 2010,
taken a plea for equal division of the properties in respect of 'B' schedule
property as well, the Trial Court rejected the same and came to the
conclusion that A.S.No.135 of 2006 was filed only with regard to
preliminary decree passed by the Trial Court, in respect of 'A' schedule
property, and therefore, the judgment and decree passed in First Appeal
would get confined only in respect of 'A' schedule property and by holding
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.9 of 2004
so, passed a supplementary decree as sought for by the first respondent.
Against the order passed in I.A.No.422 of dated 24.11.2010, the appellant
preferred C.M.A.No.52 of 2012, however, the same came to be dismissed
on 15.02.2011.
3.3 It is the contention of the learned counsel for the
appellant/plaintiff that both the Courts below have miserably failed to
consider the entitlement of the parties over the suit properties and submitted
that now, the second respondent/second defendant, viz., the mother of the
appellant passed away, in which case, both sons are entitled to claim shares
in respect of their mother's share equally, and therefore, she prayed for
appropriate orders.
4. On the other hand, Mr.M.Guruprasad, learned counsel appearing
for the first respondent/first defendant would submit that suit was filed for
partition, wherein, preliminary decree was passed by the Trial Court passed.
Against the preliminary decree passed with regard to 'A' schedule property
alone, only appellant preferred Appeal in A.S.No.135 of 2006 and the First
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.9 of 2004
Appellate Court passed a judgement and decree only in respect of 'A'
schedule property and therefore, supplementary decree can be passed only
to the extent of 'A' schedule property, and therefore, both the Courts below
rightly decided the issue with regard to 'A' schedule property. Further, the
learned counsel would submit that with regard to 'B' schedule property,
appellant's mother executed a Will in favour of first respondent on
20.06.2023, and therefore, fair and final order passed by the Trial Court in
I.A.No.422 of 2010 in O.S.No.74 of 2005, which was confirmed in
C.M.A.No.52 of 2012, warrants no nterference.
5. In reply, learned counsel for the appellant would submit that the
Will is a fabricated one. Once the second respondent's/mother's right over
the property in respect of 'A' schedule property has been decided by the First
Appellate Court and held that she is not entitled to inherit any share over her
husband's property, as, she was not a legally wedded wife, the same
yardstick has to be applied for 'B' schedule property as well, eventhough no
appeal was preferred against the preliminary decree passed in respect of 'B'
schedule property. However, the Courts below failed to consider the said
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.9 of 2004
aspect.
6. I have given due consideration to the submissions made by
Dr.R.Gouri, learned counsel for appellant and Mr.M.Guruprasad, learned
counsel for first respondent and perused the materials on record.
7. The crux of the matter is that, mother of the appellant, viz. the
second respondent herein (since deceased) is the third wife of the appellant's
father and when a challenge was made with regard to division of the
property in respect of 'A' schedule property in A.S.No.135 of 2006, it is
decided by the First Appellate Court that the second respondent, (being
mother of the appellant and first respondent) is not entitled to any share over
the suit properties, as she is not legally wedded wife of the appellant's
father, Kaliappa Gounder, and held that the appellant and first respondent
alone are entitled to equal share with regard to 'A' schedule property. It is
no doubt true that right/entitlement of the parties has been decided in
respect of 'A' schedule property, inasmuch as, First Appellate Court decided
the issue that the mother is not entitled to inherit any share in the property of
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.9 of 2004
her husband as far as 'A' schedule property is concerned. Based on the
judgement passed by the First Appellate Court, the first respondent herein
filed an Application before the Trial Court in I.A.No.422 of 2010, for
passing supplementary decree, and. in the said application, though a plea
was made by the appellant with regard to the equal division of the properties
in respect of 'B' schedule property as well, the said request was not acceded
to by the Trial Court and it is held that since the right of the appellant's
mother, who was a third wife of appellant's father was decided only with
regard to 'A' schedule property by the First Appellate Court, and as regards
'B' schedule property, no appeal is filed, and the findings of the First
Appellate Court attained finality, the judgment passed thereunder would be
binding only in respect of 'A' schedule property and in these circumstances,
application was filed by the first respondent to pass supplementary decree in
respect of both 'A' and 'B' schedule property, and The Trial Court also
allowed the application for supplementary decree and rejected the plea taken
by the appellant, in his counter affidavit, which was also confirmed by the
First Appellate Court, in C.M.A.No.52 of 2012, aggrieved against which,
the present appeal is filed.
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.9 of 2004
7.1 I am of the view that, at any costs, now the second
respondent/mother has passed away and hence, right with regard to 'B'
schedule property has to be decided and for which purpose, the parties have
to approach the Trial court by way of filing separate Application for
supplementary decree as regards the issue as to whether the mother of the
appellant is entitled to any share by virtue of her contribution made, either
directly or indirectly, to purchase the properties, in which case, it would be
appropriate for the Trial Court to decide her entitlement over the property,
because, in the present case, said aspect has to be decided since the first
respondent is claiming equal right with regard to his mother's share as well,
since according to him, Will was executed in his favour by mother/second
respondent. Therefore, in these circumstances, this Court is of the view
that, it would be appropriate for the parties to approach the Trial Court by
way of filing separate application for supplementary decree to decide the
rights of the parties respectively. If any such application is filed, the Trial
Court shall decide the matter on merits and while deciding the issue, the
Trial Court shall take into consideration the judgment and decree passed by
the First Appellate Court, in A.S.No.135 of 2006, dated 14.07.2009.
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.9 of 2004
8. In the result, this Civil Miscellaneous Second Appeal is disposed
of. Consequently, the interim order granted by this Court in M.P.No.1 of
2014 is vacated and the Miscellaneous Petition stands closed. No costs.
07.07.2023
To
1. The Principal District Judge, Tiruppur.
2. The Subordinate Judge, Udumalpet.
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.9 of 2004
Krishnan Ramasamy,J.,
sd
C.M.S.A.No.9 of 2014
07.07.2023
https://www.mhc.tn.gov.in/judis
